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    U.S. Move to Pick Digital Locks Leaves Canadians Locked Out

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    Monday August 02, 2010
    Appeared in the Toronto Star on August 2, 2010 as U.S. Move to Pick Digital Locks Leaves Canadians Locked Out

    Since its introduction two months ago, the government's copyright reform package has generated widespread debate over whether it strikes the right balance.  The digital lock provisions have been the most contentious aspect of the bill, with critics fearing that anytime a digital lock is used, it would trump virtually all other rights.

    Supporters of the C-32 digital lock approach have sought to counter the criticism by arguing that the Canadian provisions simply mirror those found in other countries such as the United States.  Yet last week, the U.S. introduced changes to its digital lock rules that leave Canada with one of the most restrictive approaches in the world.

    The U.S. rules are found in the Digital Millennium Copyright Act (DMCA), which features a triennial review process that allows the U.S. Copyright Office and Librarian of Congress to mitigate the danger the law poses to legitimate, non-infringing uses of copyrighted materials by identifying new exceptions.

    The latest review concluded last week with the introduction of new exceptions that target popular consumer products such as DVDs, smartphones, and e-books.  The exceptions - which make it legal to circumvent the locks - are narrow in scope, but they provide U.S. consumers with far more rights than those found in Bill C-32.

    The media focused primarily on the smartphone exception, which is tailor-made to address the locks found on the popular Apple iPhone.  Three years ago, the U.S. established a specific exception to allow consumers to legally unlock their cellphones so they could keep their phones when switching providers. Last week, it extended the exception even further, granting consumers the right to "jailbreak" their phones.  That move allows consumers to install applications of their choice without requiring Apple's prior approval.

    The Canadian rules on cellphones and digital locks pale by comparison.  While the inclusion of an exception for unlocking a phone was promoted as an illustration of a pro-consumer element of C-32, there is no equivalent to the U.S. rule for jailbreaking phones in Canada.

    More noteworthy were a trio of exceptions involving circumventing the locks on DVDs. The first establishes an exception to circumvent DVD protection to gather a short clip for educational purposes.  The Canadian government has promoted the benefits of C-32 to the education community (the bill includes a broad new fair dealing exception for education), yet teachers or students engaging in the same conduct would violate the law in Canada under C-32.

    The second permits documentary film makers to circumvent DVD protections to gather a short clip.  There is no similar exception found in the Canadian bill, which has led the Documentary Organization of Canada to conclude that C-32 puts "documentarists in an untenable situation" since they will not be able to use as source material any content behind a digital lock.

    The third grants a specific exception to anyone circumventing DVD protection to collect clips for non-commercial videos.  The Canadian government has touted its "YouTube" user-generated content remix exception as an example of forward-looking elements in the bill that grants Canadians the right to create remixed work for non-commercial purposes under certain circumstances. However, unlike in the U.S., those new rights are lost once the desired content is placed under a digital lock. 

    Finally, the U.S. rules also contain an exception for e-books designed to facilitate access for the sight impaired.  The Canadian rules do not contain a similar exception.

    Given the restrictions on distributing circumvention tools, contractual restrictions, and the absence of a general right to circumvent for lawful purposes, the U.S. exceptions are hardly a panacea.  Yet when compared to Bill C-32, they will leave Canadian consumers wondering why the government has proposed a bill with digital lock rules far more restrictive than those found in the U.S.

    Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.


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    Unlocked iPhones Could Herald True Mobility

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    Friday June 25, 2010

    Apple began selling the latest version of its iPhone this week in the United States and while the device will not be sold in Canada until mid-July, Canadians will be among the few that will have the opportunity to purchase it "unlocked" so that it is not tied to any specific wireless carrier.  The unlocked versions will come at a premium price, but in return consumers will be able to avoid the long-term contracts that have typified the Canadian wireless marketplace for many years.

    My weekly technology law column (Toronto Star version, homepage version) notes the issue of locked cellphones has long been a source of consumer fear and frustration since some wondered whether unlocking phones that were rendered unusable when switching wireless providers was legal. In certain respects, this was an odd question to even have to ask. No one would ever question whether consumers have the right to tinker with their car or to use the same television if they switch providers from cable to satellite, yet the wireless industry somehow convinced the public that unlocking their phones - consumers' own property - was wrong.

    That perception is rapidly changing with several developments paving the way for an unlocked iPhone. 


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    Unlocked iPhones Could Herald True Mobility

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    Monday June 21, 2010
    Appeared in the Toronto Star on June 21, 2010 as Unlocked iPhones Could Herald True Mobility

    Apple begins selling the latest version of its iPhone this week in the United States and while the device will not be sold in Canada until mid-July, Canadians will be among the few that will have the opportunity to purchase it "unlocked" so that it is not tied to any specific wireless carrier.  The unlocked versions will come at a premium price, but in return consumers will be able to avoid the long-term contracts that have typified the Canadian wireless marketplace for many years.

    The issue of locked cellphones has long been a source of consumer fear and frustration since some wondered whether unlocking phones that were rendered unusable when switching wireless providers was legal. In certain respects, this was an odd question to even have to ask. No one would ever question whether consumers have the right to tinker with their car or to use the same television if they switch providers from cable to satellite, yet the wireless industry somehow convinced the public that unlocking their phones - consumers' own property - was wrong.

    That perception is rapidly changing with several developments paving the way for an unlocked iPhone.  First, the new joint Bell-Telus network now means that Rogers is no longer the only provider capable of running the device. With each of the big three offering the device, an unlocked version makes consumer and business sense.

    Second, Canadian wireless carriers have attempted to lock consumers into contracts for far longer than virtually any other developed country, with three-year contracts considered the norm.  Several years ago Canada instituted wireless number portability that allows consumers to keep their numbers when switching providers, yet long-term contracts have proven a major barrier to full portability. Given consumer frustration with long-term lock-in, offering a full priced device without the contractual burden may resonate with consumers willing to pay more upfront for immediate contractual freedom.

    Third, there has been a dramatic shift in power in recent years within the wireless marketplace.  Until recently, wireless carriers occupied the power position since handset makers depended on them for distribution of their devices.  Carriers were able to extract favourable terms and demand carrier-specific restrictions on devices that ran on their networks.  The popularity of smartphones from Apple, Research in Motion, and Google have reversed this dynamic, however, with the device makers now positioned to dictate terms to carriers anxious to offer hot devices that often run in short supply.

    Fourth, the government sent signals earlier this month that it wants to avoid erecting new barriers that could render unlocking phones more difficult. Bill C-32, the recently tabled copyright bill, expressly excludes unlocking cellphones from its ambit. The last copyright bill would have made it a violation for Canadians to unlock their cellphones and banned the distribution of software programs that could be used to do so.  This bill permits unlocking (subject to contractual restrictions), though obtaining the technical tools for those consumers with locked phones may prove difficult.

    Given all of these developments - marketplace demand for unlocked phones, changing power dynamics, and government policy designed to foster consumer mobility - is there anything more to be done?

    There is at least one stumbling block left that needs to be addressed. The availability of an unlocked iPhone may foreshadow a broader shift in the marketplace, yet millions of Canadians are still stuck with phones locked to a single carrier.  Once the consumer contract expires, many believe the carrier should be obligated to unlock the phone upon request.  That obligation lies at the heart of the Cell Phone Freedom Act, a private member's bill introduced last week by NDP MP Bruce Hyer. Whether by legislation or market pressure, it appears that true mobility may ultimately be coming to the Canadian mobile market.

    Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.


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    Comparing Canadian iPhone Costs

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    Friday November 06, 2009
    The Financial Post has a good comparison of iPhone costs among the three Canadian carriers.  The bottom line?  Virtually no difference in price for most users.
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